HomeMy WebLinkAboutC-9009-1 - Encroachment Agreement for 1450 Avocado AvenueRECORDED REQUESTED BY AND
WHEN RECORDED, RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659 -1768
WITH A COPY TO:
The Irvine Company LLC
550 Newport Center Drive
Newport Beach, CA 92660
Attn: General Counsel's Office
Exempt recording requested per Gov. Code 6103
This Document was electronically recorded by
ER Cert Mail F
Recorded in Official Records, Orange County t— '"
Tom Daly, Clerk- Recorder
III1J11 NO FEE
2008000480501 10:51am 10/17/08
213 92 Al2 13
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0100
EXEMPT RECORDING REQUEST PER (Space above line for Recorder's use
GOti`ERNMENT CODE 2733,1 ENCROACHMENT AGREEMENT
(Company Improvements in Avocado Avenue Open Space Parcel)
This Encroachment Agreement ( "Agreement') is made and entered into this S f
day of L�c:f yi, 2008, by and between the CITY OF NEWPORT BEACH, a California
municipal corporation organized and existing under and by virtue of its Charier and the
Constitution and laws of the State of California ( "City'), and THE IRVINE COMPANY LLC, a
Delaware limited liability company ( "Company "). City and Company are sometimes referred to
herein individually as a "Party" and collectively as the "Parties."
RECITALS
A. WHEREAS, City owns that certain parcel of open space land located within the
city limits of City as described on Exhibit A and depicted on Exhibit B attached hereto (the
"City Parcel "). The City Parcel is bordered by MacArthur Boulevard on the east, San Miguel
Avenue on the south, Avocado Avenue on the west, and the Orange County Transportation
Authority transportation center on the north.
B. WHEREAS, Company is the owner of that certain retail shopping center known
as "Fashion Island" and various office and other properties within the area depicted as the
"Newport Center" on Exhibit C attached hereto (hereinafter, the retail shopping center, office
and other properties owned by Company within Newport Center are collectively referred to as
the "Company Properties "),
C. WHEREAS, in connection with the operation of the Company Properties,
Company desires to continue to operate and maintain certain signs, entry monuments, lighting,
landscaping, landscape irrigation systems, paved sidewalks and related improvements
(collectively, the "Company Inrprovements'� located within the portions of the City Parcel
30209 -0102/367379.7 9/10/08 -1-
depicted on Exhibit D attached hereto (which portions are identified on Exhibit D as the "Entry
Monument Area" and the "Sign Area "). The Entry Monument Area and the Sign Area are
sometimes referred to herein collectively as the "Maintenance Areas."
D. WHEREAS, City is willing to allow Company to install and maintain the
Company Improvements within the Maintenance Areas, subject to the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the above recitals and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, City and Company
agree as follows:
AGREEMENT
1. Pen-nit. City will permit Company to construct, reconstruct, install, maintain, use,
operate, repair and replace (a) the Company Improvements within the Maintenance Areas
depicted on Exhibit D attached hereto, and (b) existing landscape irrigation lines within the City
Parcel that are used to irrigate the Maintenance Areas. City also will allow Company to take all
reasonable measures necessary or convenient in accomplishing such activities. The Company
Improvements have previously been installed in the Sign Area and the Entry Monument Area
portions of the City Parcel, and any additions or substantial changes to such Company
Improvements, or the addition of new Company Improvements, shall be subject to Section 3
below.
2. Standard of Maintenance. Company shall, at its sole cost and expense, maintain the
Company Improvements installed within the Maintenance Areas in accordance with general
prevailing standards of maintenance, and pay all costs and expenses incurred in doing so.
Company's maintenance obligation shall also include replacement of the Company
Improvements, where necessary. All replacements and repairs shall be consistent with similar
improvements maintained on the Company Properties within Newport Center and other first -
class regional shopping malls in Orange County, California. In addition, Company is responsible
for the cost of providing water and any other utilities required in connection with the Company
Improvements installed within the Maintenance Areas. Nothing contained herein, however, shall
be construed to require Company to maintain, replace or repair any improvements owned by the
City (the "City Facilities ") within the City Parcel, except to the extent that the operation or
maintenance of the Company Improvements causes damage to the City Facilities.
3. Alteration of Company Improvements. Company shall not substantially alter the
Company Improvements from their condition as of the date of recordation of this Agreement,
nor add additional Company Improvements within the Maintenance Areas, without the prior
written approval of City.
4. Relocation of Maintenance Areas. City acknowledges that the signage, entry
monuments, landscaping and other Company Improvements are of critical importance in creating
an entry statement for the Company Properties within Newport Center. Therefore, in the event
that construction or alteration of additional roadway or other public improvements approved by
City result in the elimination of all or any portion of the Maintenance Areas (the "Eliminated
Portion "), then City shall replace and relocate the Eliminated Portion(s) to a substantially similar
30209 -0102367379.7 9/10/08 -2-
location within the City Parcel mutually acceptable to Company and City, with the intention of
the parties being to minimize impacts on Company and the Company Properties within Newport
Center caused by the elimination of such portion(s) of the Maintenance Areas. In the event of
any such relocation of any portion(s) of the Maintenance Areas pursuant to this section, the
parties agree to cooperate to execute any amendments to this Agreement as are reasonably
necessary to reflect such relocation of the portion(s) of the Maintenance Areas and the
termination of this Agreement as to the Eliminated Portion(s) that have been relocated.
5. Failure to Perform. If Company fails to fulfill its maintenance or other responsibilities
under this Agreement, City may provide Company with written notice of such failure describing
the deficiencies in reasonable detail (the "Deficiency Notice'). If such deficiency is not
corrected within thirty (30) calendar days of Company's receipt of the Deficiency Notice, City
shall have the right, but not the obligation, to cure the deficiency; provided, however, that if the
deficiency is of a type that cannot reasonably be cured within such period, it will be deemed
cured if Company commences to cure the deficiency within such period and proceeds diligently
thereafter to complete the cure of such deficiency. if City elects to cure the deficiency, Company
shall reimburse City for its actual and reasonable costs incurred in curing the deficiency within
thirty (30) calendar days of Company's receipt of City's invoice for such costs, which invoice
shall be accompanied by copies of receipts evidencing the actual cost of cure incurred by City.
6. Liens. Company shall not suffer or permit to be enforced against the City Parcel any
mechanics, laborers, materialmens, contractors, subcontractors, or any other liens, claims or
demands arising from any maintenance or other work performed by Company within the
Maintenance Areas, but Company shall pay or cause to be paid all of said liens, claims and
demands before any action is brought to enforce the same against the City Parcel.
7. City Maintenance of City Facilities. City acknowledges that it, or the applicable utility
company, will remain responsible for maintenance and repair of any City Facilities within the
City Parcel. In the event that City finds it necessary to enter the Maintenance Areas to maintain,
repair, replace, remove or enlarge (collectively, the "Repairs' any of the City Facilities, City
may, after ten (10) calendar days prior notice to Company (except in case of emergency, in
which event no prior notice is required), remove such portions of the Company Improvements
within the Maintenance Areas as necessary to accomplish the Repairs. In such event:
a. City agrees to minimize, to the extent feasible, the portions of the Company
Improvements that must be removed to accomplish the Repairs, and to coordinate
with Company regarding cutting of irrigation lines and alterations of Company
Improvements so as to minimize disruption of the Company Improvements and
the effect of the Repairs on unaffected portions of the Maintenance Areas. (The
portion of the Maintenance Areas affected by the Repairs is referred to herein as
the "Affected Area.')
b. City shall complete the Repairs in a diligent manner so as to minimize the time
that the Maintenance Areas are disrupted by the Repairs.
C. City shall bear the cost of removing the Company Improvements from the
Affected Area to accommodate the City's Repairs.
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d. Upon completion of the City's Repairs, Company shall be responsible for
arranging for any replacement or restoration of the Company Improvements
within the Affected Area, and for all costs associated therewith. Notwithstanding
the foregoing, however, City shall be responsible for reimbursing Company for
the cost of replacement or restoration of Company Improvements in the event that
such improvements are damaged as a result of the negligence or willful
misconduct of City's contractor while performing the Repairs.
8. Term. This Agreement shall remain in effect for so long as one or more of the Company
Properties within Newport Center are operated; provided, however, that (a) City may terminate
this Agreement upon thirty (30) calendar days' prior written notice to Company in the event that
Company fails to perform or cure any failure to perform within the times provided in Section 5
above, and (b) Company may terminate this Agreement by providing thirty (30) calendar days'
prior written notice to City, in which event Company shall be responsible for removing the
Company Improvements and, to the extent that any City Facilities would otherwise have been
used in place of the Company Improvements (e.g., directional signs), replacing them with City's
then standard City Facilities, unless City otherwise directs Company to keep the Company
Improvements in place.
In addition, if City determines that it needs to use any portion or all of the Maintenance Areas
where the Company Improvements are located, City may, upon sixty (60) calendar days' prior
notice to Company, terminate this Agreement as to all or any portion of the Maintenance Areas
as needed by City for public use. However, promptly after giving such notice of intended
termination to Company, City agrees to meet with Company to discuss alternatives that would
avoid or minimize any such termination. The final determination as to whether to adopt or reject
any such alternatives shall be made by City in its sole discretion.
9. Assignment. Company may assign its rights and obligations under this Agreement to any
person or entity (each, a "Successor ") which has, in City's reasonable opinion, the financial
capacity and is otherwise capable of performing the maintenance work to be performed
hereunder, including but not limited to any commercial or residential association within Newport
Center responsible for maintenance of landscaped or other common areas, a subsequent owner of
one or more of the Company Properties within Newport Center, or any affiliate of Company (that
is, any entity controlling, controlled by or under common control of Company). Any such
assignment must be in writing, must contain the Successor's agreement to be fully bound by the
terms and provisions of this Agreement, and a copy of such assignment must be delivered to
City. After the effective date of any such assignment by Company, Company shall have no
further rights or obligations hereunder.
10. Insurance. Any Successor (other than an affiliate of Company) shall obtain, provide and
maintain, at its sole cost and expense, a policy or policies of liability insurance of the type and
amounts specified below and in form reasonably satisfactory to City, and shall also require in its
contracts with any contractors that perform any design, installation, maintenance or other work
in the Maintenance Areas, that such contractors also provide the same insurance coverage as
outlined herein at all times during the performance of any such work, at no cost or expense to
City, policies of liability insurance of the type and amounts described below and satisfactory to
City. Certification of all required policies shall be signed by a person authorized by that insurer
to bind coverage on its behalf and must be filed with City prior to performance of any work
30209- 0102/367379.7 9/10/08 -4-
within the Maintenance Areas. Except for workers' compensation and any errors and omissions
coverage, all insurance policies shall, to the extent coverage is provided under such policies, add
City, its elected and appointed officials, officers, agents, representatives and employees as
additional insureds for all liability arising from the design, installation and maintenance of the
Company Improvements.
Insurance policies for the following coverages, with original endorsements related to the
Company Improvements and the maintenance work to be performed hereunder, shall be issued
by companies approved or licensed to do business in California and assigned Best's A- VII or
other rating acceptable to City:
a. Workers compensation insurance, including "Waiver of Subrogation" clause,
covering all employees of such contractor, per the laws of the State of California.
b. Commercial general liability insurance, including additional insured and primary
and non - contributory wording, covering third party liability risks, including
without limitation, contractual liability, in a minimum amount of $2 million
combined single limit per occurrence for bodily injury and property damage. If
commercial general liability insurance or other form with a general aggregate is
used, either the general aggregate limit shall apply separately to the work to be
performed under this Agreement, or the general aggregate limit shall be twice the
occurrence limit.
C. Commercial auto liability and property insurance, including additional insured
(and primary and non - contributory wording for waste haulers only), covering any
owned and rented vehicles of such contractor in a minimum amount of $2 million
combined single limit per accident for bodily injury and property damage.
d. For any contractors providing design services, professional errors and omissions
insurance, which covers the services to be performed in connection with any
improvements to be installed within the Maintenance Areas, in the minimum
amount of $1 million.
City may, from time to time, require increases in the amounts of coverage specified above to
conform with the levels of insurance required in City landscape maintenance or similar contracts.
Said policy or policies shall be endorsed to state that coverage shall not be subject to
cancellation or non - renewal without thirty (30) days prior written notice to be delivered to City.
All contractors providing insurance as required hereunder shall give City prompt and timely
notice of claim made or suit instituted arising out of contractor's work on the Maintenance Area.
Each contractor shall also procure and maintain, at its own cost and expense, any additional
kinds of insurance that in its own judgment may be necessary for its property protection and
prosecution of the work.
Each contractor will be required to agree that in the event of loss due to any of the perils
for which it has agreed to provide comprehensive general and automotive liability insurance,
contractor shall look solely to its insurance for recovery. The workers compensation policy and
any other policy pertaining to the Maintenance Areas carried by each contractor will contain a
30209 -0102 /367379.7 9110/09 -5-
waiver of subrogation with respect to City as to any claims that may be asserted against City by
virtue of the payment of any loss under such insurance.
11. Indemnification. Company shall indemnify, defend and hold harmless City, its City
Council, boards and commissions, officers and employees from and against any and all loss,
damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys'
fees when outside attorneys are used (collectively, the "Claims', whether incurred by or made
against City or made by any third party, arising from or related to (a) Company's design,
installation or maintenance of the Company Improvements, (b) the acts of Company or its
contractors within the Maintenance Areas, and (c) Company's performance of its obligations
hereunder; provided, however, that Company's indemnity obligations under this Agreement shall
not apply to the extent that any Claim is caused by the negligence or willful misconduct of City
or City's contractors within the City Parcel.
12. Run with the Land. This Agreement and the terms, conditions and covenants contained
herein shall be perpetual in nature and shall run with the City Parcel and the Company Properties
,A6thin Newport Center owned by Company as of the date of recordation of this Encroachment
Agreement, and shall be binding upon and inure to the benefit of Company and City and the
successors and assigns of each party, whether the interest held by such party is in fee or
otherwise. This Agreement shall be recorded in the Office of the County Recorder of Orange
County, California.
13. Notices. All Notices required or permitted under this Agreement shall be in writing and
shall be deemed to have been duly given if personally delivered or sent by prepaid first class
mail, addressed as follows:
If to City: City of Newport Beach
3300 Newport Boulevard (P.O. Box 1768)
Newport Beach, California 92658 -8915
Attention: City Manager
If to Company: The Irvine Company LLC
550 Newport Center Drive
Newport Beach, CA 92660
Attn: General Counsel
Either party may change its address for notice by providing written notice of such changed
address to the other.
14. Incorporation of Recitals and Exhibits. The Recitals to this Agreement, and Exhibits A.
B. C and U attached hereto, are hereby incorporated herein by this reference.
15. Authority. The Parties represent and warrant that this Agreement has been duly
authorized and executed and constitutes the legally binding obligation of their respective
organization or entity, enforceable in accordance with its terms.
16. Amendment. This Agreement may be amended only by a written instrument approved
and executed by the Parties.
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17. Priority. Company agrees that this Agreement shall always be prior and superior to and
shall be recorded prior to any mortgage, deed of trust or any other hypothecation or security
hereafter placed on any of the Company Properties within Newport Center.
18. Controlling Law and Venue. The laws of the State of California shall govern this
Agreement and any action brought relating to this Agreement shall be adjudicated in a court of
competent jurisdiction in the County of Orange.
19. Entire Agreement. This Agreement, together with the Exhibits attached hereto and the
Encroachment Permit for the Company Improvements to be executed prior to construction of the
Company Improvements, constitutes the entire Agreement between the Parties pertaining to the
subject matter hereof, and all prior and contemporaneous agreements, representations,
negotiations and understandings of the Parties, whether oral or written, are hereby superseded
and merged herein.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and
year first above written.
"Company"
The Irvine Company LLC,
a Delaware limited liability company
By: 0,92,3 . lubd —
Ronald J. Keith
Executive Vice President
Commercial Property Development
Investment Properties roup
By:
Brigid DWcMahon
Assistant Secretary
«City,,
City of Ne port Beach
a Califo mu , . orp�o ation
By:
Mayor
ATTEST:
APPROVED FORM:
By: "t
City Attorney
City Clerk
30209 - 0102/367379.7 9/10/08 -7-
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE }
On October 1, 2008, before me, Joni Grossman , a Notary
Public in and for said State, personally appeared Ronald J. Keith, who proved to me on the
basis of satisfactory evidence to be the perso hose name is are subscribed to the within
instrument and acknowledged to me that e he /they executed the same in lino her /their
authorized capacity(ie§), and that by his er /their signature.(s) on the instrument the personW, or
the entity upon behalf of which the person(Wacted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal
- - - Oit[ )
ary Publi6 in and for said State
COMM4100A • t 73 09T
No" IuW • CatNOrnlo
(SEAL) Crane+ County
50!
L1011�It � Ott NOTARY: 30NI GROSSMAN
TELEPHONE # 949 - 720 -2582.
COMMISSION #1736093
COUNTY: ORANGE COUNTY
COMM. EXPIRES: APRIL 30, 2011
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
On October 1 , 2008, before me, Joni Grossman , a Notary
Public in and for said State, personally appeared Brigid D. McMahon, who proved to me on the
basis of satisfactory evidence to be the persons) whose nam rs re subscribed to the within
instrument and acknowledged to me that heshpYthey executed the same in his their
authorized capacity(i+os), and that by hi & their signature(s) on the instrument the person(,$); or
the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
mi s
Notary Public Iin and for said State
(SEAL) NI N
COMMISMOn • 173 093 NOTARY: JONI GROSSMAN
No" ttialo - Camotnto TELEPHONE # 949 - 720 -2582
Qmmw County COMMISSION #1736093
'��11>pll COUNTY: ORANGE COUNTY
COMM. EXPIRES: APRIL 30,2011
30209 - 0102/367379.7 9110108 -8-
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On �(�alect( �� 2008, before me, I d ayii 1. F� YM , a Notary
Public in and for said State, personally appeared UM0 P. -I11 1
who proved to me on the basis of satisfactory evidence to be the person(s)rwhose name(s) is /arm
subscribed to the within instrument and acknowledged to me that he /she*tey executed the same
in his /hefAheir authorized capacity(ies•), and that by his/hen4dieir signatures) on the instrument
the person(s)-,or the entity upon behalf of which the person(4acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
0 �O' XDWI
Notary Public in and for said State
(SEAL) tFUrm3 1. 131owN
Commission N 1673477
ig Notary Public - CaHiorrda
orange County
6_.My Comm: EMPhMJan26.201
30209- 0102/367379.7 9/10/08 -9-
Revised August 27, 2008
July 7, 2008
JN 10- 105906
Page 1 of 1
ENCROACHMENT AGREEMENT
EXHIBIT "A"
LEGAL DESCRIPTION OF THE CITY PARCEL
(A.P.N.442- 014 -24)
That certain real property in the City of Newport Beach, County of Orange, State of California
being that certain parcel designated "Remaining Parcel' on the map of Parcel Map No. 88 -163
filed in Book 253, Pages 34 and 35 of Parcel Maps, in the Office of the County Recorder of said
Orange County.
As shown on EXHIBIT "B" attached and by this reference made a part hereof.
Gregory A. Helmer, L.S. 5134 1 Date
RBF Consulting
14725 Alton Parkway
Irvine, California 92618
H:\pdata\ 10105906 CAdininLLzga1sN5906- LGL- 05.doc
ENCROACHMENTAGREEMENT
EXHIBIT "B"
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4'. P.M.
P.M.
P.M:B. 27/43\ /
P.M.B.
QV� PARCEL 1
PARCEL 'A'
/ P.M.B. 91 / 19 \
\ PARCEL 1 /
PARCEL 2
P.M. N0. 83 -279
P.M.B. 193/17-18
PARCEL 2 �P
P.M.B. 37/23 /
',o
N0. 88 -163
PCL. 2
253/34 -35
ZY
/ S
CITY PARCEL
'REMAINING PARCEL'
P.M. NO. 88-163
P.M.B. 253134,95
0 CITY PARCEL
DEPICTION OF CITY PARCEL
ADDRESS: 1450 AVOCADO AVENUE
REVISED AUGUST 27, 2008
JUNE 3, 2008.
am
ENCROACHMENTAGREEMENT
EXHIBIT "C"
FoRO BONITA
RO AD CANYON
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FgSMION 9p
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PLLNNINO • OES I.. . .... T... T10N
U726 .ALT PA WAY
MW. CALPofMA 92 618 2 927
C O N SL LTI N G 9694723696 • FAX949.4726 • wxwA cm
DEPICTION OF NEWPORT CENTER
REVISED AUGUST 27, 2008
JUNE 3, 2008
ENCROACHMENTAGREEMENT
EXHIBIT "D" \
\ \ `
\ v
y -
V
\ � � qQ4 q�q�0 P.M. N0. 88 -163
�`�P.M.B. 27/43\ / / IPCL. 2
�9� P.M.B. 253 /34 -35
/ pR� Qc; PARCEL 1 /
� PARCEL 'A'
% \ P.M.B. 91 / 19 \ /
PARCEL 1 / S
/ N
/ UJU
PARCEL 2 \ /
P.M. N0. 83 -279 y SIGN AREA
P.M.B. 193/17 -18 / �S
PARCEL 2
P.M.B. 37/23 /
P CITY PARCEL
'REMAINING PARCEL'
P.M. NO. 88-163
P.M.B. 253 / 3435
ENTRY MONUMENT AREA
CITY PARCEL
DEPICTION OF MAINTENANCE AREAS
ADDRESS: 1450 AVOCADO AVENUE
REVISED AUGUST 27, 2008
JULY 9, 2008